Levens and Gaisford
[2020] FCCA 810
•9 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LEVENS & GAISFORD | [2020] FCCA 810 |
| Catchwords: FAMILY LAW – Parenting – mother having died in car accident – nine year old boy having four half siblings – two other half-siblings living at home – the three younger half-siblings cared for by the maternal grandparents after the mother’s death – the three half-siblings living at home each having a different father – younger half-sibling moving to live with his father by consent – older half-sibling remaining with maternal grandparents by consent – nine year old boy the subject of the proceeding told as a child that his father did not want him – father not knowing of boy’s existence until he was four years old – father living nine hours’ drive away – father spending limited amount of time with nine year old boy since learning of his existence, but now seeking that child live with him and that he have sole parental responsibility – family consultant particularly concerned about boy’s psychological development and identity formation, in circumstances where he was told his father did not want him – family consultant considering that sibling bonds secondary to parental bond, in circumstances where boy has only one surviving parent and where he was told his father did not want him. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Case cited: Aldridge v Keaton (2009) 235 FLR 450; (2009) 42 Fam LR 369; (2009) FLC 93-421; [2009] FamCAFC 229 |
| Applicants: | MR LEVENS AND MS LEVENS |
| Respondent: | MR GAISFORD |
| File Number: | MLC 13584 of 2018 |
| Judgment of: | Judge Riley |
| Hearing dates: | 16, 17, 18 and 19 March 2020 |
| Date of last submission: | 23 March 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 9 April 2020 |
REPRESENTATION
| Counsel for the applicant: | Mr Williams |
| Solicitors for the applicant: | Morrison and Sawers |
| Counsel for the respondent: | Mr Mulligan |
| Solicitors for the respondent: | Thexton Lawyers |
| Counsel for the independent children’s lawyer: | Mr A. Combes |
| Solicitors for the independent children’s lawyer: | Medson Legal Pty Ltd |
ORDERS
All extant parenting orders in relation to X born in 2010 (“X”) be discharged.
The father, the respondent, have sole parental responsibility for X.
X live with his father commencing at 10am on 24 March 2020.
The father collect X from the home of his maternal grandparents at 10am on 24 March 2020.
Once X relocates to his father’s home:
a.X live with his father;
b.subject to any restrictions imposed as a result of the coronavirus pandemic, X spend time with his maternal grandparents as follows:
i.in each term school holidays after the April 2020 school holidays as agreed, noting that the time X is with the maternal grandparents should coincide as far as possible with the time C is in the care of the maternal grandparents, and failing agreement, from 10.00am on the first Saturday of such school holidays until 5.00pm on the middle Sunday of such school holidays;
ii.in even numbered years, from 5pm on 23 December until 5pm on 15 January;
iii.in odd numbered years, from 5pm on 14 January until 5pm on 28 January; and
iv.as otherwise agreed in writing between the father and the maternal grandparents;
c.in the event that X flies to Melbourne to spend time with his maternal grandparents, changeover occur at Tullamarine Airport or as otherwise agreed;
d.in the event that X travels by car to spend time with his maternal grandparents, changeover occur at the maternal grandparents’ home or as otherwise agreed;
e.the maternal grandparents may communicate with X by telephone, Skype or other similar communication method at all reasonable times;
f.the maternal grandparents and the father facilitate B and X communicating by telephone, Skype or other similar means at all reasonable times; and
g.the father authorise X’s school to provide to the maternal grandparents, at the father’s expense, copies of any school reports, school notices and school photograph order forms in relation to X.
As soon as is practicable, the father ensure that X attends upon a psychologist to address issues relating to his relocation, his mother’s death, and his perception that his father abandoned him for the first four years of his life, and the father attend sessions with the psychologist as the psychologist directs.
Subject to order 9, all costs of travel for X to spend time with the maternal grandparents be paid for by the father.
The father provide to the maternal grandparents all itineraries for X’s travel between their respective homes not less than two weeks prior to the scheduled travel.
Within seven days of the father providing the itinerary to the maternal grandparents, the maternal grandparents pay $50 per flight to the father as a contribution to the costs of X’s air travel.
Upon X relocating to his father’s home, the maternal grandparents be at liberty to spend time with X as agreed between the parties in New South Wales and attend X’s school for the purpose of attending any function or activity that would normally be attended by parents.
Until the maternal grandmother obtains a report from appropriately qualified specialists that, in view of her mental and neurological health, X is not at risk being in her care, the maternal grandfather be restrained from leaving X in his maternal grandmother’s sole care at any time.
The parties be at liberty to communicate with each other by text and/or email in relation to the care and welfare of X and the parties each facilitate such communication.
Each of the maternal grandparents and the father keep each other advised of:
a.any significant illness or injury suffered by or affecting X;
b.their respective residential addresses, telephone numbers and email addresses; and
c.any hospital admission of either of the maternal grandparents or the father within twelve hours of such admission, via text message.
The father and his servants and agents be restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the maternal grandparents or any member of their household in the presence or hearing of X and from permitting any other person to do so.
The maternal grandparents and their servants and agents be restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the father or any member of his household in the presence or hearing of X and from permitting any other person to do so.
The order appointing the independent children’s lawyer be discharged.
All extant applications in relation to X be otherwise dismissed.
Pursuant to s.65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
NOTATIONS
A.Pursuant to s.62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.
B.Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.
IT IS NOTED that publication of this judgment under the pseudonym Levens & Gaisford is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 13584 of 2018
| MR LEVENS and MS LEVENS |
Applicants
And
| MR GAISFORD |
Respondent
REASONS FOR JUDGMENT
Introduction
For reasons of urgency created by the COVID-19 pandemic, orders in this matter were pronounced on 23 March 2020. At that time, brief reasons were given orally, on the basis that formal written reasons would be provided in due course. These are those reasons.
This is an application for parenting orders in respect of X who was born in 2010 (“X”). X is now nine years old.
Tragically, X’s mother, Ms A, was killed in a single vehicle car crash in 2018. X’s father is the respondent to this proceeding. The applicants are the maternal grandparents.
At the time of his mother’s death, X was living with his mother, his older half-sister, B, and his younger half-brother, C. B is now 14 years old. C is now six years old. X also has two older half-siblings, Ms D and Ms E, who are both adults and living independently. E is B’s full sister. It was unclear to the court who Ms D’s father is.
X’s mother and father cohabited and were engaged to be married. However, their relationship ended prior to X’s birth and the father moved interstate. The mother was in communication with the father after they ended their relationship. However, she did not inform the father that she was pregnant or that X had been born until he was four years old. The mother told X that his father did not want him and that his father left them.
From shortly after X was born in 2010 until 2014, the mother was living with Mr F, who is C’s father. After the mother and Mr F separated, the mother informed the father of X’s birth.
When he learned of X’s birth, the father was living in Town G, in New South Wales Region H, with his partner, Ms J. They continue to live there together. Town G is about an hour’s drive from Sydney Airport. The mother at that time was living in Town K, which is about 40 kilometres northwest of Town L in Victoria. Town L is about 200 kilometres from Tullamarine Airport.
It is about a nine hour drive between Town G and Town K. It is also possible to drive from Town G for about an hour to Sydney Airport, take a flight of about one hour to Tullamarine Airport, spend about an hour in the airports, hire a car and drive for about two and a half hours to Town K. This makes the trip about five and a half hours each way.
After learning of X’s birth, the father said that the mother did not allow him much time with X. However, X spent time with his father, between July 2014, when the father learned of X’s existence, and 2018, when the mother died, as follows:
a)from 26 December 2014, for two weeks, at the father’s home;
b)in 2015, for about two days, in Town K, at around X’s birthday;
c)in October 2015, for about three days, at the paternal grandparents’ home in Melbourne;
d)from 26 December 2016, for two weeks, at the father’s home; and
e)from 26 December 2017, for two weeks, at a holiday house in Melbourne.
That totals about six weeks and five days over a three year period.
When the mother died in 2018, X and his half-siblings, B and C, were with C’s father, Mr F. The maternal grandparents shortly afterwards took B and X to live with them in Town M, which is a little closer to Town L than Town K, while C remained with Mr F.
The maternal grandfather is now 75 years old and the maternal grandmother is now 67 years old. X’s father is now 37 years old.
No one in the family informed X’s father of the mother’s death. The father learned of the mother’s death about two weeks after the event from a mutual friend. That was after the mother’s funeral. Upon learning of the mother’s death in 2018, the father immediately travelled to Town M to spend a brief period of time with X.
At the time of the mother’s death, X was attending N School in Town O and B was attending P School in Town L.
The maternal grandparents commenced the proceeding on 26 November 2018. The respondents at that time were the mother (deceased), B’s father, Mr Q, X’s father, Mr Gaisford, and C’s father, Mr F.
By orders made by Judge Bender on 13 December 2018, the mother was removed as a party to the proceeding. By final orders made by consent by Judge Stewart on 10 February 2020, C is to live with his father, Mr F. Mr F was removed as a party to the proceeding by an order made by Judge Riley on 16 March 2020. Also on that date, the remaining parties, including B’s father, Mr Q, consented to final orders that B live with her maternal grandparents. Mr Q was then removed as a party. Therefore, the only remaining parties for the trial were the maternal grandparents and X’s father, Mr Q.
By interim orders made by Judge Bender on 13 December 2018, B and X were to live with their maternal grandparents, and C was to live with Mr F. On 13 December 2018, Judge Bender made orders for B to spend time with her father and X to spend time with his father. The arrangement in respect of X was for two weeks in the long summer holidays and alternate weekends.
Judge Bender made further orders on 27 March 2019 for X to spend time with his father:
a)during term holidays, from 12 noon on the first Saturday until 12 noon on the second Sunday; and
b)during the summer holidays, for two weeks from 28 December 2019.
Those orders were made pursuant to a minute of proposed consent orders. The relevant proposed order in the minute of proposed consent orders was expressed a little differently. It was in two different handwritings, indicated below by script in bold and not bold, as follows:
The child X spend time with the 2nd respondent father, Mr Gaisford, during term holidays from 12 noon on the 1st Saturday to 12 noon on the 2nd Sunday of such holidays [and] for two weeks commencing 28 December in the 2019/20 Christmas School holidays.
The word and, in square brackets in the quotation, was not in the minute of proposed consent orders. Mr Thexton, who appeared for the father on 27 March 2019, gave evidence by telephone on the first day of the final hearing. It is clear to me that Mr Thexton mistakenly thought that the minute of proposed consent orders provided for X to spend two weeks with his father each term holiday, when in fact it provided for X to spend eight days with his father each term holiday and two weeks each summer holiday. Mr Thexton mistakenly told X’s father that the orders provided for X to spend two weeks with him each school term holiday. (Privilege was waived.)
Consequently, the father mistakenly believed that X was meant to spend two weeks with him each school term holiday. In the April 2019 school term holiday, which was the first term holiday after the relevant orders were made, the father overheld X, in reliance on his mistaken understanding of the minute of proposed consent orders. The father signed the minute of proposed consent orders, but apparently did not comprehend what it said. The handwriting in the part of the proposed order that is not in bold in the quotation above was a bit spidery and hard to read.
Mr Thexton was so convinced of his interpretation of the minute of proposed consent orders that he lodged a complaint with the Legal Services Commissioner about Mr Nicholson, who appeared for the maternal grandparents on 27 March 2019, alleging that Mr Nicholson had altered the minute of proposed consent orders after they were provided to the court. That complaint was subsequently withdrawn.
There is absolutely no reason to believe anyone altered the minute of proposed consent orders. The minute of proposed orders on the court file does not have any relevant alterations to it. The orders were engrossed by Judge Bender’s chambers, rather than the applicants’ solicitors.
The issue came to a head shortly after the father collected X for the April 2019 school holidays. There was an exchange of emails between solicitors. Suffice to say that the positions (plural) put forward by Mr Thexton were completely untenable.
Mr Thexton’s entirely inaccurate advice to the father was very unfortunate because it led the father to overhold X, caused a good deal of ill-feeling between the father and the maternal grandparents, and invited a conclusion that the father would not comply with court orders. The consequence of such a conclusion could be that the father could not be trusted to facilitate any time that might be ordered between X and his maternal grandparents, thus militating against an order that X live with his father.
However, in my view, the fault lay very largely with Mr Thexton. Since April 2019, the father has been fully compliant with court orders. I consider that the unfortunate events of April 2019 were almost entirely the result of Mr Thexton’s incomprehension of the minute of proposed consent orders. I do not consider that the overholding incident is indicative of a propensity on the part of the father to disregard court orders.
In any event, by orders made by Judge Bender on 13 December 2018, the maternal grandparents were permitted to change X’s school to P School in Town L for the 2019 school year. Instead, X attended N School in Town L in 2019 and for the first term in 2020.
The reason for changing X’s school, within a couple of months of his mother dying, was that it was more convenient for the maternal grandparents for B and X to take the bus together in the same direction than leave X at his existing school, where he had a circle of friends.
The maternal grandparents are pensioners. They live on five acres in an isolated rural area about half an hour’s drive west of Town L. Significantly, the maternal grandmother, who is 67 years old, has been diagnosed with a number of physical health conditions, namely:
a)coronary artery disease;
b)hypertension;
c)type 2 diabetes;
d)dyslipidaemia; and
e)a brain disorder, namely, anti-NMDA receptor encephalitis.
It was conceded that the maternal grandmother needs a walking frame to walk more than about 20 metres. In addition, the maternal grandmother has been diagnosed with schizophrenia. She has spent a good deal of time in psychiatric hospitals, including in recent times. Indeed, although the maternal grandmother attended the hearing between 16 and 19 March 2020, the court was told at the mention on 23 March 2020 that she had been readmitted to hospital.
The maternal grandfather is 75 years old. He is in good physical condition. There was no suggestion that he has any mental disorders.
The maternal grandfather conceded, in effect, that he has a very limited social circle, and that he does not invite X’s friends over for play dates. He was unable to name any of X’s friends. The reports from X’s new school indicate that X certainly interacts with other children at school but appears to have limited friendships.
The maternal grandfather said that, at home, X plays with B, who is 14 years old and has her own friendship group. In addition, the maternal grandfather said that X swims in the pool, usually with B but sometimes with the maternal grandfather, plays with the dogs, plays on his Xbox, and also sits with the maternal grandfather while he watches the news.
By contrast, the father said that he lives in a court, in which there are a number of other families with children of around X’s age. Moreover, the father has a number of friends who have children of X’s age, who he would encourage X to be friends with. In addition, the father said that he would go out of his way to make friends with the parents of any children that X befriended at school, to foster X’s relationship with those friends, including by seeing them outside school hours. The father’s intentions regarding X’s social life are what many child-focussed parents do, to ensure that their children have a rich and rewarding social life. The maternal grandparents’ approach to X’s social life is a stark contrast to the father’s intended approach.
The father is a small business owner, with a number of employees. Although the father could have spent each alternate weekend with X pursuant to court orders, he spent significantly less time with X than he could have. The father indicated that the reasons for that related to cost and inconvenience, given that it is a very long trip from Town G to Town M.
The father has a suspicion that X may be on the autism spectrum. However, Ms R, the family consultant, noted in her family report that there were no developmental issues for any of the children. When asked specifically about this in her oral evidence, Ms R said that she did not formally conduct an autism assessment but had not identified it as an issue for X. There was no expert evidence to support a diagnosis of autism in X. Consequently, I disregard the father’s suspicion in this regard.
The father noted that the s.11F family consultant in her oral evidence on 13 December 2020 recommended that the parties and children engage with a service such as Relationships Australia to deal with their grief and loss issues. The father criticised the maternal grandparents for not obtaining professional grief assistance for X, B, C and themselves, but especially for X. The maternal grandparents sought to rely on the report in exhibit -1 to the affidavit sworn by Ms S on 12 December 2019 to say that the s.11F recommendation had been complied with. The maternal grandparents said that, as indicated in Ms S’s report, X had engaged with the Seasons for Growth Program at school, which was an eight week program dealing with grief, loss and change.
However, as counsel for the independent children’s lawyer noted, Ms S said in her report that X participated in that program at the beginning of 2018, which was before his mother had died. The program clearly did not meet the family consultant’s recommendation for professional grief counselling for X after his mother died. The maternal grandparents did not suggest that they had taken any other steps to permit X to have counselling.
Chronology
The existing parties provided to the court a detailed, joint, agreed chronology as follows:
Date Event 1944 Maternal Grandfather born 1952 Maternal Grandmother born 1972 First Respondent Father, Mr Q, born 1972 Third Respondent Father, Mr F, born 1977 Mother, Ms A, born Maternal Grandmother diagnosed with Post-Natal Depression and Schizophrenia and remains in hospital for six (6) months. 1982 Second Respondent Father, Mr Gaisford, born 1987 Maternal Grandmother hospitalised for approximately 2-3 months due to the deterioration of her mental health. 1989 Maternal Grandmother hospitalised for approximately 2-3 months due to the deterioration of her mental health. 1994 Mother’s child, Ms D, born 1994 Mother and Mr Q commence relationship 15/10/1998
Mother and Mr Q’s child, Ms E, born
1999 Mother and Mr Q marry 2004 Mother and Mr Q divorce – then reconcile 2005 B born 2008 Mother and Mr Q separate 2009 Mr Q sentenced to 16 months imprisonment for armed robbery.
Paternal Grandmother takes B and E to visit Father each fortnight at T Prison
Paternal Grandparents relocate to Town M 2009
Mother and Gaisford commence relationship – engaged some months later.
2009 Mother and Gaisford separate. 2010 X born 2011 Mother and Mr F commence relationship Mother and Mr F move from Suburb U to Town K with the children to live in a home purchased for her and the children by the Maternal Grandparents 2013 Maternal Grandmother hospitalised due to the deterioration of her mental health.
Maternal grandmother diagnosed with:
- coronary artery disease;
- hypertension;
- type 2 diabetes;
- dyslipidaemia.
Paternal Grandmother diagnosed with brain disorder, anti-NMDA receptor encephalitis.
2014 C born 2014 Ms E moves out of family home after being assaulted by Mr F, and lives with Mr Q.
Ms E alleges witnessing Mr Q using marijuana and ICE during the time she lived with him.
After Ms E moves to live with Mr Q, Mr Q spends little time with B.
Mother and Mr F separate.
Mr F threatens to commit suicide in the presence of the children. Taken to Town L
Hospital for assessment and released the same day. 2014
Mother contacts Gaisford and informs him of the birth of X and that X is his son.
Gaisford begins spending time with X. Maternal Grandmother voluntarily hospitalised due to mental health concerns. 2018
Mother killed in car accident.
Mr F takes all three children to his home.
2018
Maternal Grandparents collect B and X from Mr F.
C remains with Mr F.
Gaisford not notified of the Mother’s death or that the child, X, is living with the Maternal Grandparents.
2018
Gaisford notified by mutual friend that Mother has died.
Gaisford flies to Melbourne and drives to Town L to see X at the Maternal Grandparents home. 26/11/2018
Maternal Grandparents commence proceedings in the Federal Circuit Court
12/12/2018
Orders made by Judge Bender in the Federal Circuit Court for the parties to attend Child Inclusive Conference on 13 December 2018, and an oral report to be delivered at 2.15pm on that day.
13/12/2018
Child Inclusive Conference held.
Orders made by Judge Bender in the Federal Circuit Court providing inter alia as follows:-
· Independent Children's Lawyer be appointed;
· B and X live with the Maternal Grandparents;
· C live with Mr F;
· B spend time with Mr Q each alternate Saturday and Sunday between 10.00am and 4.00pm, in the Town L area;
· X spend time with Gaisford for 2 weeks in long summer holidays, and each alternate weekend from Friday to Sunday during the school term in the Town L area and one weekend a month at the Paternal Grandparents in Melbourne;
· C spend time with B, X and Maternal Grandparents for specific periods over the school holidays, and then from after kindergarten Friday to 5.00pm Sunday each alternate weekend commencing 22 February 2019 and from after kindergarten to 5.00pm Tuesday each alternate week commencing 21 January 2019;
· liberal telephone communication clauses for all children; and
· adjourned to 27 March 2019.
Christmas 2018/2019
X spends the following time with Mr Gaisford;
· Week 1 of the Christmas Holiday Period;
· Christmas Day;
· New Years Eve; and
· Week 2 of the Christmas Holiday Period.
End of January 2019
Mr Gaisford began to spend one weekend per month with X.
27/03/2019
Orders made by Judge Bender in the Federal Circuit Court providing inter alia as follows:-
· X spend time with Mr Gaisford during the term holidays from 12.00 noon on the first Saturday until 12.00 noon on the second Sunday and for two weeks in the long summer vacation from 28 December 2019;
· Family Report be prepared; and
· adjourned to 10 February 2020 for Final Hearing.
14/04/2019
Mr Gaisford does not return X to the care of the Maternal Grandparents, as provided for in the Orders made 27 March 2019.
22/04/2019
Mr Gaisford returns X to the care of the Maternal Grandparents.
24/04/2019
Mr Gaisford’s solicitors, on Mr Gaisford’s behalf, file Complaint to the Legal Services Commissioner in relation to the Paternal Grandparent’s Counsel, Mr Keith Nicholson, alleging misrepresentation by Mr Nicholson concerning the content of the Orders made on 27 March 2019.
23/05/2019
Maternal Grandmother hospitalised due to deterioration of her mental health for 26 days as a result of multiple mental health issues.
June 2019
Mr Gaisford’s complaint to the Legal Services Commissioner against Mr Keith Nicholson withdrawn.
22/07/2019
Orders made by Judge Middleton in the Federal Circuit Court providing inter alia as follows:-
· pending the Applicant Grandmother obtaining a report from her treating psychiatrist, the Applicant Maternal Grandfather be restrained by injunction from leaving the children in the Applicant Maternal Grandmother’s care at any time;
· the Applicant Grandmother obtain a report from her treating psychiatrist and provide same to the solicitors for the other parties; and
· a 69ZW Report be provided by the Department of Health and Human Services.
27/08/2019
Maternal Grandmother hospitalised due to deterioration of her mental health for approximately one month
30/09/2019
Maternal Grandmother hospitalised due to deterioration of her mental health for approximately two months.
18/12/2019
Family Report released recommending, inter alia, as follows:-
· B live with Maternal Grandparents and spend time with Mr Q;
· C live with Mr F and Mr F have sole parental of C;
· C spend time with Maternal Grandparents and siblings;
· X to live with Mr Gaisford and Mr Gaisford have sole parental of X;
· X spend time with Maternal Grandparents and siblings; and
· If Maternal Grandparents unable to facilitate this, Mr Gaisford to liaise with Mr F to organise spend time. 12/01/2020
X spends time with Paternal Grandparents, and Mr Gaisford does not attend.
End of January 2020
X spends 2 weeks with Mr Gaisford
06/02/2020
Orders made by Judge Bender in the Federal Circuit Court providing as follows:-
· the matter be listed for Mention on 10 February 2020;
· the Final Hearing on 10 February 2020 be vacated; and
· the matter be listed for Final Hearing on 16 March 2020.
10/02/2020
Final Orders made in relation to C by Judge Stewart in the Federal Circuit Court providing inter alia as follows:-
· Mr F have sole parental responsibility for C;
· C spend time with the Maternal Grandparents:-
· During the school term in a four week cycle, from 10.00am Saturday until 5.00pm Sunday on the first weekend in the cycle, and from 10.00am to 5.00pm on the Saturday and the Sunday of the third weekend in the cycle;
· in each school holiday period for 5 consecutive days from 10.00am to 5.00pm on each day;
· from 1.00pm Christmas Eve until 1.00pm Christmas Day in 2020 and each alternate year;
· from 1.00pm Christmas Day until 1.00pm Boxing Day in 2020 and each alternate year; and
· such further time as agreed between the Maternal Grandparents and Mr F; and
· pending the Maternal Grandmother obtaining a report from a specialist, the Maternal Grandfather be restrained by injunction from leaving C in the Maternal Grandmother’s sole care.
Material relied upon
The applicants relied upon the following:
a.the affidavit of Mr Levens filed on 22 January 2020;
b.the affidavit of Ms Levens filed on 22 January 2020;
c.the amended initiating application filed on 22 January 2020;
d.the affidavit affirmed by Ms E on 12 December 2018; and
e.the affidavit sworn by Ms S on 12 December 2018.
The father relied upon the following:
a.the family report prepared by Ms R on 4 December 2019;
b.the notice of risk filed by the father dated 19 July 2019;
c.the affidavit affirmed by the father on 10 December 2018;
d.the affidavit affirmed by the father on 12 December 2018;
e.the affidavit affirmed by the father on 27 March 2019;
f.the affidavit affirmed by the paternal grandmother, Ms V, on 27 March 2019;
g.the affidavit affirmed by the maternal grandfather on 10 July 2019; and
h.the medical reports in relation to the maternal grandmother, which were tendered and became exhibits 17 and 18.
The independent children’s lawyer relied upon the following:
a.the family report by Ms R dated 18 December 2019; and
b.subpoenaed material from:
i.Town W Health;
ii.Victoria Police;
iii.New South Wales Police;
iv.Town L Regional Health; and
v.Mr Y.
Principal issues
The family consultant, Ms R, prepared a family report dated 18 December 2019. Ms R recommended that X live with his father from January 2020, and that the father have sole parental responsibility. The trial was initially scheduled for February 2020 before Judge Bender. However, it was not possible to conduct the hearing then. The matter was relisted to 16 March 2020 before me. Suffice to say that Ms R recommended that X relocate to his father’s home prior to the scheduled final hearing, and within a couple of weeks of her report.
Although the maternal grandparents initially argued that X should stay with them permanently, the parties ultimately agreed that X should live with his father. The parties differed over when the transition should occur. The maternal grandparents submitted that X should relocate at the end of primary school. The independent children’s lawyer conducted the hearing on the basis that X should relocate on 5 January 2021, at the end of grade 4, and in readiness for grade 5. However, in closing submissions, with the benefit of Ms R’s oral evidence, the independent children’s lawyer proposed that, if schools were closed due to the COVID-19 pandemic, or if the maternal grandfather was required to go into isolation because of his age, X should relocate to live with his father immediately. The father initially submitted that X should relocate in the June/July 2020 school holidays. However, in the final minutes of the hearing on 19 March 2020, the father submitted that the transition should occur immediately if schools were closed or the maternal grandfather was required to go into isolation.
Additionally, the parties differed over the question of parental responsibility. The maternal grandparents submitted that, even after X relocated to live with his father, they and the father should continue to have equal shared parental responsibility. The father submitted that, after X relocates to live with him, the father should have sole parental responsibility. The independent children’s lawyer agreed with the father on that point.
Otherwise, the independent children’s lawyer provided to the court a minute of proposed consent orders on the final day of the hearing which became exhibit 29. It included some hand written amendments. During the final hearing, the parties indicated to the court that they consented to everything in the minute, subject to the hand written amendments, apart from proposed order 2.
However, at the mention on 23 March 2020, the maternal grandparents’ solicitor, who appeared at the telephone mention, but not during the hearing, (possibly because of the cap on the numbers of people who could be in court at any one time due to the coronavirus pandemic) said that the maternal grandparents did not consent to the first two proposed orders.
Proposed orders by consent
In any event, exhibit 29, with the handwritten amendments, stated as follows:
1.All extant parenting Orders in relation to the child X born in 2010 (“X”) be discharged.
2.The Maternal Grandparents and the Second Respondent [ie, the father] have equal shared parental responsibility for X, until he relocates, after which the father have sole parental responsibility.
3.Until X relocates to his father’s home:
a.X live with the Maternal Grandparents.
b.X spend time with the Second Respondent [that is, the father] as follows:-
i. Each alternate school term weekend, commencing after school Friday until 6.00pm Sunday, with such time to occur within 100km of Town M, with the first such period to commence on 24 April 2020;
ii. on any long weekend for X, arising either from a public holiday or a non-school day, from after school on the day immediately preceding the weekend, until 6.00pm on the day before school with the Second Respondent to meet the costs of any airfares required by X to spend time with the Second Respondent;
iii. in each mid-year school holidays as agreed, noting that the time X is with the Applicants during school term holiday periods should coincide as far as possible with the time C born in 2014, is in the care of the Applicants and failing agreement from 10.00am on the middle Saturday of such school holidays until 5.00pm on the final Sunday of such school holidays;
iv. in even numbered years, from 5pm on 23 December to 5pm on 13 January;
v. in odd numbered years, from 5pm on 14 January to 5pm on 28 January; and
vi. as otherwise agreed between the Maternal Grandparents and the Second Respondent.
c.For the purposes of the Second Respondent spending time with X pursuant to paragraphs 3.b.i and 3.b.ii hereof, not less than one week prior the Second Respondent shall confirm in writing (including by text message) that the spend time period is taking place.
d.For the purposes of changeover:-
i. insofar as paragraph 3.b.i and ii hereof, the Second Respondent shall collect X from the Maternal Grandparents’ residence at the commencement of time and return X to the Maternal Grandparents’ residence at the conclusion of time;
ii. insofar as all other occasions, the Second Respondent, and/or his nominee shall collect X from and return X to Tullamarine airport.
e.The Second Respondent may communicate with X by telephone, Skype or other similar communication method at all reasonable times.
f.The Maternal Grandparents authorise X’s school to provide the Second Respondent, at his expense, copies of any school reports, school notices and school photographs order forms in relation to X.
4.Once X relocates to his father’s home:
a.X live with the Second Respondent.
b.X spend time with the Maternal Grandparents as follows:
i. in each mid-year school holidays as agreed, noting that the time X is with the Applicants during school term holiday periods should coincide as far as possible with the time C born in 2014, is in the care of the Applicants and failing agreement from 10.00am on the middle Saturday of such school holidays until 5.00pm on the final Sunday of such school holidays;
ii. in even numbered years, from 5pm on 23 December to 5pm on 13 January;
iii. in odd numbered years, from 5pm on 14 January to 5pm on 28 January; and
iv. as otherwise agreed between the Maternal Grandparents and the Second Respondent.
c.For the purposes of changeover the Maternal Grandparents shall collect X from Tullamarine Airport school (sic) at the commencement of time and return X to Tullamarine Airport residence (sic) at the conclusion of time.
d.The Maternal Grandparents may communicate with X by telephone, Skype or other similar communication method at all reasonable times.
e.The Second Respondent authorise X’s school to provide [to] the Maternal Grandparents, at his expense, copies of any school reports, school notices and school photographs order forms in relation to X.
5.Subject to order 7, all costs of travel for X to spend time with either the Second Respondent or the Applicants shall be paid for by the Second Respondent.
6.All itineraries for X’s travel between the homes of the Applicants and the Second Respondent shall be provided by the Second Respondent to the Applicants not less than two weeks prior to the scheduled travel.
7.Within seven (7) days of the Second Respondent providing the itinerary to the Applicants pursuant to Order 6 hereof, the Applicants shall pay $50 per flight to the Second Respondent as contribution to the costs of X’s air travel.
8.Upon X’s relocation to New South Wales the Applicants shall be at liberty to spend time with him as agreed between the parties in New South Wales and attend X’s school for the purpose of attending any function or activity that would normally be attended by parents.
9.Pending the Applicant Maternal Grandmother Ms Levens obtaining a report from appropriately qualified specialists with respect to her mental and neurological health that X is not at risk of being in her care, the Applicant Maternal Grandfather, Mr Levens be restrained by injunction and an injunction be granted restraining him from leaving X in the Applicant Maternal Grandmother’s sole care at any time.
10.The parties shall be at liberty to communicate with the other by text and or email in relation to the care and welfare of X and the parties each facilitate such communication.
11.Each of the Maternal Grandparents and the Second Respondent keep each other advised of:
a.any significant illness or injury suffered by or affecting X;
b.their respective residential address, telephone numbers and email addresses;
c.any hospital admission of any of the Applicants or Second Respondent within twelve (12) hours of such admission, via text message.
12.The Second Respondent, his servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the Applicants, or any members of their household in the presence or hearing of X or from permitting any other person to do so.
13.The Applicants, their servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the Second Respondent, or any members of his household in the presence or hearing of X or from permitting any other person to do so.
14.The Order appointing the Independent Children’s Lawyer shall be discharged.
15.In the event that the father flies to Melbourne, changeover occur at Tullamarine Airport.
16. In the event that the father travels by car, changeover occur at the maternal grandparents’ home.
17.The father as soon as is practicable ensure that X attends upon a psychologist to address issues relating to his relocation, his mother’s death, and X’s perception that his father abandoned him for the first four years of his life, and the father attend sessions with the psychologist as the psychologist directs.
The family consultant’s report
Ms R said in her family report that:
Child Safety and Wellbeing
…
24.Both Mr Gaisford and Mr F have alleged that the children are at risk in the extended care of the maternal grandparents due, in part, to them being elderly and with impaired capacity to attend to the children's wellbeing. Additional concerns relate to the maternal grandmother's ongoing mental health concerns and the impact on her capacity to provide safe care of the children.
Drugs and alcohol
25.… No allegations were made regarding substance use pertaining to the maternal grandparents. No allegations of substance abuse were made with regards to Mr Gaisford or Mr F.
Mental Health
26.No mental health concerns have been identified with regards to … Mr Gaisford …
27.The maternal grandfather does not have identified mental health issues. The maternal grandmother, Ms Levens, suffers with a range of diagnoses, for which she receives treatment and support. At the time of interviews, Ms Levens had been discharged from an extended inpatient stay in hospital to manage a deterioration in her psychiatric functioning.
Child development
28.There are no reported developmental issues for any of the children, B, X or C. It is acknowledged that they are each grieving the loss of their mother in their own way. The children are being supported by their school, the maternal grandparents, their respective fathers and extended families, as best they can.
ISSUES IN DISPUTE AND ISSUES IDENTIFIED DURING ASSESSMENT
Key issues
…
Ms Levens, applicant maternal grandmother, presents as psychiatrically vulnerable and likely impacts her capacity to attend to the children in an attuned manner
…
Mr F - third respondent father
…
33.Mr F expressed a clear opposition to any of the children living with Mr and Mrs Levens. His reasoning related to his experience of the late mother's poor relationship with them, her negative appraisal of her parents, as expressed to him during their relationship, the maternal grandparents age, and the maternal grandmother's impaired psychiatric functioning. Mr F firmly believed that the late Ms Levens would not want any of the children residing with the maternal grandparents.
34.With regards to X, Mr F acknowledged the father's absence in X's formative years. Mr F confirmed that during his relationship with the late Ms A, she had not informed Mr Gaisford of X's birth and had impeded his involvement in X's life. Mr F described his efforts to encourage the mother to permit Mr Gaisford and the paternal grandparents to meet and develop a relationship with X.
35.Mr F empathised with X. He understood that X was grieving the loss of his mother and that he was likely confused by his changed family circumstances and the conflict between his maternal and paternal family members. Mr F accepted that the maternal grandparents loved X, but he did not believe that it was in X's best interests to live with them. Mr F supported Mr Gaisford's proposal for X to live with him in Town G. Mr F was confident that he and Mr Gaisford could and would remain in communication and support time between the siblings C and X. Mr F was prepared to facilitate time with C, B and X, if and when possible, in consultation with the maternal grandparents and B and in accordance with B's wishes.
Mr Gaisford - second respondent father
37.Mr Gaisford (aged 37 years) attended with his partner, Ms J. The paternal grandparents, Ms V and Mr Z were also present. Mr Gaisford was polite and friendly. He engaged in a thoughtful and respectful manner at interview. Mr Gaisford presented as genuine and non-blaming when he explained the circumstances of his absence in X's early life. He spoke of being committed to being involved in X's life when he became aware of his son's existence. Mr Gaisford said that over the years his relationship with X has become more familiar and connected. Mr Gaisford referred to X in fond and familiar terms and he impressed as knowledgeable about X's character and interests and his developmental needs. He was aware of X's struggles at school and his reported behavioural issues. According to Mr Gaisford, the paternal grandparents have also formed close and familiar relationships with X.
38.In the tragic circumstances of the mother's death and the resulting disruptions in the children's lives, Mr Gaisford expressed sensitivity and empathy for B, X and C, and the maternal grandparents. He acknowledged that X was grieving the loss of his mother and likely struggling with the changes in his living arrangements. Mr Gaisford was, however, unsupportive of the children, especially X, living with the maternal grandparents. His opposition related to their age and the maternal grandmother's poor mental health. Mr Gaisford acknowledged B's right to choose to live with Mr and Mrs Levens and C's right to live with his father, Mr F. Mr Gaisford sought the opportunity to parent X and be responsible for his future care and upbringing. To this end, he proposed for X to live with him, in Town G, NSW.
39.Mr Gaisford proposed for X to relocate immediately to live in Town G. He anticipated that an immediate move would allow X to adapt to the change associated with living with him and his partner in Town G, provide opportunities for X to settle into their home and in the local community, and prepare for school in 2020. Mr Gaisford had considered the option of X remaining in the Town L / Town K area for another six months to a year, but he did not believe that arrangement to be appropriate. He believed it would create further unnecessary disruption in X's life and living arrangements. Mr Gaisford was respectful of the maternal grandparents, and the maternal grandfather's desire to keep the siblings together, however, he remained opposed a continuation of arrangements whereby X lived with them.
40.While Mr Gaisford acknowledged that it would be potentially challenging for X to move away from his siblings and maternal grandparents, and his familiar community, he remained convinced that an immediate move was in X's best interests. Mr Gaisford assured that he and his partner were committed to parenting X, capable of prioritising the child's needs and interests, and buffering the emotional impact on X of relocating. To assist X to settle in their care, Mr Gaisford anticipated accessing counselling support for the child and their family as required. Mr Gaisford believed this was appropriate and necessary to assist X with the transition and to process his loss and grief.
41.It was Mr Gaisford's intention to continue to support the sibling relationship between X, B and C, and the relationship between X and the maternal grandparents. He accepted that the distance between the two homes was significant and too expensive to travel frequently. Mr Gaisford said he would support X to travel to the Town L area during school holidays to see his siblings and the maternal grandparents. He said the maternal grandparents and B were welcome to visit him and X in Town G. When circumstances were conducive, Mr Gaisford hoped to travel with X to Town L to facilitate additional time with the maternal grandparents and with his siblings. Mr Gaisford was confident that he and Mr F were committed to communicating and facilitating the sibling relationship between X and C.
42.In summary, Mr Gaisford proposed for X (Gaisford) to relocate immediately to live with him in Town G, NSW. He supported time occurring with the maternal grandparents and X's siblings, B and C, in the Town L area, during school holidays and other times by agreement. He was supportive of additional time occurring if the maternal grandparents were able to travel to the Town G area. Mr Gaisford anticipated liaising directly with Mr F to organise time between the siblings, C and X.
…
Mr Levens and Ms Levens - applicant maternal grandparents
44.Mr Levens (aged 75 years) and Ms Levens (aged 67 years) attended with B and X. Ms Levens had been discharged from hospital the morning of interviews after a lengthy stay to treat and manage her mental health issues. Ms Levens presented as vulnerable, compliant and agreeable. She did not engage at length at interview. Mr Levens impressed as a stoical man, a supportive husband to his wife, a grieving father to his deceased daughter, and a concerned grandfather to the three subject children. He was respectful about the children's respective fathers, but spoke of Mr Q, Mr Gaisford and X's paternal grandparents, Ms V and Mr Z, in careful and measured terms.
45.Mr Levens and Ms Levens live in a three-bedroom home in Town M. They purchased a home in Town K for the mother and she moved there in 2011 with Mr F and the children. They spent intermittent time with the mother and grandchildren over the years. Mr Levens and Ms Levens considered their relationship with their late daughter to have been close, supportive and mutually loving. As the children lived nearby, they reportedly spent sufficient time with the maternal grandparents to have formed a close and loving relationship with them.
46.Mr and Mrs Levens were familiar with the children's character and personalities. They were confident in their capacity to provide for the children and attend to their needs, despite their age and the maternal grandmother's mental health issues. Mr and Mrs Levens wanted the best outcome for the children. They proposed to continue the current arrangement whereby B and X lived with them and C spent time with them on alternate weekends and during school holidays. Mr Levens proposed for B to spend time with her father according to her preferences. He proposed for X to spend time with his father, Mr Gaisford, during school holidays and other times as agreed, in the Town L area or elsewhere. They were not opposed to the children spending time with the paternal grandparents but did not want to liaise with Ms V, as they found her to be rude, insensitive and difficult to communicate with.
47.If X was supported to live with Mr Gaisford, in Town G, Mr Levens and Ms Levens informed that they would be saddened, and they would miss X. If this occurred, Ms Levens proposed to reverse the above proposals. He sought for X to spend time with them, and the siblings, during school holidays and other times by agreement, in the Town L area or Town G or elsewhere.
Ms V and Mr Z - paternal grandparents
48.Ms V and Mr Z were invited to provide input into the matter. The paternal grandmother presented as passionate and opinionated. Ms V appeared to have difficulty accepting views and opinions expressed by others, especially if they did not align with hers and her preferred outcomes. Mr Z impressed as more reflective, thoughtful and respectful. He was able to hear and contemplate alternative views and opinions.
49.Ms V and Mr Z were supportive of X living with the father, in Town G, NSW. They were unsupportive of X remaining in the care of the maternal grandparents, due in part to their age and the maternal grandmother's mental health issues. Mr Z and Ms V were confident that their relationship with X would be nurtured by Mr Gaisford if he moved to Town G.
50.Historically, Mr Z and Ms V experienced difficulties meeting and forming a relationship with their grandson. Ms V was critical of the mother's actions in marginalising the father and them from X's early life. She viewed the maternal grandparents as unsupportive of X's relationship with his father and of them knowing their grandson. Since the mother's death, Ms V has been vocal about expressing her views that X should live with Mr Gaisford.
Adult relationships
51.The relationship between the maternal grandparents and the respective fathers is strained, but respectful. Mr F has been able to communicate and collaborate with Mr and Mrs Levens with regards to C. Mr Gaisford has been able to communicate with the maternal grandparents however, Mr and Mrs Levens have struggled to communicate with his mother, Ms V. They have experienced her as insensitive and disrespectful and showing no empathy for their loss or the experience of the other children and their respective fathers. The maternal grandparents have experienced Mr Z as more collaborative, sensitive and respectful. It is their preference to liaise with Mr Z with regards to X. The relationship between Mr Gaisford and Mr F is polite, friendly and respectful.
THE CHILDREN AND THEIR RELATIONSHIPS AND INTERACTIONS
54.Given the number of persons present and the evident discomfort of Mr and Mrs Levens, they were assisted to sit separately. B and X elected to sit with the maternal grandparents. …
55.Interactions between the siblings were positive and joined. It was apparent that B, X and C enjoyed a close sibling bond. The three children were observed to enjoy a close and appropriate relationship with the maternal grandparents. They entertained themselves and seemed content and happy in the maternal grandparents' company. X was observed to have formed a close and familiar relationship with his father, and paternal grandparents. He acknowledged them and engaged in easy conversation with them. X, however, seemed a bit overwhelmed by the meeting and the number of persons present. While B was polite and respectful to the adults present, she chose to remain in the company of the maternal grandparents.
CHILDREN'S INTERVIEWS
…
56.… C informed, "I want to live with my Dad." According to C, "sometimes I miss B and X... but not always."
57.C referred positively to his maternal grandparents and offered, "he's a good grandpa." At the maternal grandparents' home, C said, "X is really naughty sometimes, to me... he hurts me and sometimes I hurt him... I tell Grandpa." C assured that he was happy to see his grandparents and his siblings. He was happy to spend time at the maternal grandparents' home, but he did not want to be pressured to sleep there. C shared, "I don't like sleep overs... because I miss my Dad." C anticipated a future where he might be willing to sleep over, "when I'm older I might want to, but not now."
…
59.X was seen alone. He indicated that he understood the reportable nature of the interview and that it concerned his future living arrangements. X is currently in Grade 3 and in 2020 he will commence Grade 4 in Primary School. X identified Mr Gaisford as his father, and informed, "Mr Gaisford is a good Dad... and Ms J (his partner) she's okay." X identified Mr F as a father figure in his early life, "Mr F was around after I was born because my Dad wasn't... because he went off to Sydney... I know, because Mum told me, and Grandma and Grandpa told me." X's memory of his parents was unreliable. He remembered, "Mum and Dad never had fights." X was unsure ifhe was referring to Mr Gaisford or Mr F. He shared, "Mum wanted to get a lawyer because he (Mr Gaisford) wanted to get me for Christmas." X's understanding of his father's lack of involvement in his early life appeared to have been influenced by the mother's negative view of Mr Gaisford and the maternal grandparents' appraisal of Ms A’s relationship with Mr Gaisford. According to X, "my Dad could of got me eight years ago, but he didn't want me when I was born... but now he does." X continued, " Ms V (paternal grandmother) found out about me and wanted to meet me... Mum didn't want him to know about me... because she said that bad things might happen."
60.Having met his father and paternal grandparents in recent years, X confirmed that he has formed familiar and appropriate relationships with them. X was confident that he enjoyed "a good relationship with Dad." X said he has travelled to Town G to spend time with his father. He remembered the occasions positively, "it is kind of good to go there... it's good there... Dad has a two-storey house." X was anticipating travelling to Town G to spend time with his father this upcoming Christmas. X has contemplated the possibility of living with his father and visited schools in the area "four times." When he described this possibility, X presented as intrigued and excited, but with mixed emotions.
61.If he lived with this father, X said he would miss his maternal grandparents and his sister, B. He did not expect he would miss his brother, "B is older, and I get along with her... C and I are only sort of close... he is into things like transformers and I'm not." X referred to a good relationship with the maternal grandparents. He identified the best and worst aspect of about living with Mr and Mrs Levens "they've got four dogs... and they bring dust in." At the maternal grandparents' home, X said, "I don't get bored... and I know they love me... and we get pizza every week."
62.X was conflicted, if he lived with his father, he anticipated, "it will be hard because I believe that Dad loves me and wants me NOW, but he didn't when I was born... so maybe I should stay with grandpa." X pondered, "when I'm ten years old, I might be able to go and live with Dad." X did not want to be pressured to decide and he seemed relieved when informed that the decision was not his to make.
…
64.B accepted that C would live with Mr F. She was happy to see C at the maternal grandparents' home and in their community. While B did not anticipate attending at Mr F's home, she understood that she was welcome there. With regards to X, B accepted that he may live with Mr Gaisford in Town G. While it was not B's preferred outcome, she shared, "If X goes, I'll be okay." B wanted to tell the Judge, "Everything is good how it is now. I'd miss X if he goes because I've lived with him my whole life... but I'll be okay."
EVALUATION
65.This family law matter concerns three children who have different biological fathers, B (aged 14 years 4 months), X (aged 9 years 5 months) and C (aged 5 years 10 months). The matter came before the court following the unfortunate and sudden death of the mother, the late Ms A. The applicant maternal grandparents acted with good intent, to support, protect and provide for the children following the mothers' death. The respective father's (sic) each sought to intervene and care for their child. Each of the parties and the children grieved in their own manner and they continue to do so.
66.The maternal grandparents' application for the three children to live with them is well meaning and understandable. The maternal grandfather, Mr Levens, is elderly and the maternal grandmother has mental health issues. Ms Levens’ capacity to provide safe care of the grandchildren is likely impacted by her mental health status at any given time. While Mr Levens presents as healthy, he has a duty to care for his wife through sickness and health. Despite the maternal grandparents' good intentions, Mr and Mrs Levens should be supported to relinquish the primary care of the children and adopt a grandparent role in their lives. It is assessed that Mr and Mrs Levens could best support the children by fostering and supporting their relationship with each of their father's and promoting the importance of those relationships.
67.B is deemed to be of an age where her views and opinions should be considered. B's father has seemingly withdrawn from further involvement in the family law matter and has informed B that he will support her decision: Support is given to B living with the maternal grandparents and spending time with Mr Q, in consultation with B and according to her wishes.
68.B is of an age where her interests and lifestyle are different from her younger brother's. Provided that B spend (sic) time with C and X, and she is permitted to communicate with them on a regular basis, the sibling relationships should remain close and connected. B should be encouraged to attend counselling to validate and explore grief and loss associated with the sudden death of her mother.
69.There is agreement for C to live with his father, Mr F, in Town K. C was observed to enjoy a close and loving relationship with his father, and he expressed a clear desire to live with him. Mr F and the maternal grandparents agree for C to spend time with the maternal grandparents on alternate weekends. While the maternal grandparents want the father to instil an expectation in C that he will sleep overnight, it is recommended that overnight time occurs according to C's wishes and at Mr F's discretion. Mr F should hold sole parental responsibilities for C.
70.C is grieving the loss of his mother and he experiences his father as reliable and predictable. C needs to be confident that Mr F is available and committed to parenting him in an ongoing manner. Mr F presents as supportive of C's relationship with the maternal grandparents, and his siblings. Mr F was prepared to support C to sleep over at the maternal grandparents, if C wishes to do so. This arrangement is age and situation appropriate. C needs to experience a safe and stable family home and general routine with his father. Visits with the maternal grandparents, and paternal grandparents, is appropriate. If C wants to sleep at the home of his maternal grandparents or paternal grandparents, on alternate weekends or during school holiday periods, then this should occur in consultation with Mr F and according to C's preferences. Flexible time should occur, by agreement between B and C.
71.With regards to X, it is recommended that X is supported to live with his father, and Ms J, in Town G, NSW. It is recommended that X transitions to his father's care in early January 2020. This will allow X time and opportunity to settle in Town G and adapt to the change of residence and parenting approach. An immediate relocation will help X familiarise himself with the community and allow Mr Gaisford to assist X to transition to a new school over the summer holidays.
72.While X is confident that his father loves him, he has adopted a view that Mr Gaisford did not want him, until recently. Given this internalised script, there are few benefits for X of postponing a move from the maternal grandparents' home to living with his father. X presents as being of an age and with a sufficiently robust temperament to manage the transition to Mr Gaisford's care, provided he and Mr Gaisford engage with supports. While X is still young, and before he enters puberty and adolescence, X and Mr Gaisford will be better placed to nurture and develop their relationship and form a loving family unit.
73.Upon settling in Town G, X should be engaged in grief counselling and then perhaps family therapy with Mr Gaisford, and possibly with his partner. This will enable X to process his grief and loss and consider the resulting changes in his life. Ideally, X will be assisted in therapy with his father, to rewrite the script of his early life, from one where he was abandoned, to one where he is loved and wanted. This will be important for X as he ages and matures, and it will assist him embrace and adapt to life with his father.
74.Unfortunately, the distance between the two homes will result in a reduction of time between X and the maternal grandparents and between X and his siblings. The maternal grandparents' capacity to travel to Town G is limited, as is Mr Gaisford's capacity to travel to the Town L area. While it is not ideal, the children are of an age where they understand the possibility that X might move to live with his father, and the reasons for the potential change in his living arrangements. They are of an age where they can retain a memory of loved ones in their absence.
75.Provided that school holiday time is supported, and regular telecommunication occurs in the next year or two, this will go some way to buffering the impact on the sibling relationships between the siblings. The sibling relationships and bonds may alter but they will not disappear. There is some confidence that Mr Gaisford and Mr F can and will remain in contact and collaborate to nurture the sibling bond between X and C. Provided that X remains in therapy and spends time with his siblings during the year, the possibility of integrating and embracing the change will be enhanced, to his benefit.
RECOMMENDATIONS
76.It is recommended that Mr Levens and Ms Levens hold parental responsibilities for B.
77.B should live with the maternal grandparents and spend time with her father, in consultation with her and according to her preferences.
78.Mr F should hold sole parental responsibilities for C and the child should live with him.
79.Time between C and the maternal grandparents and with his siblings should occur, in consultation with C and at Mr F' s discretion.
80.X should live with his father, Mr Gaisford, in Town G, NSW. X should transition to Mr Gaisford's care in January 2020 and be enrolled at a local school.
81.Mr Gaisford should hold sole parental responsibilities for X.
82.X should spend time with the maternal grandparents, and B and C, in the Town L area for one week of the school holidays, including the summer holidays.
83.If the maternal grandparents are unable to facilitate this arrangement, Mr Gaisford should liaise with Mr F to organise arrangements for the siblings to spend time together and such time should occur by agreement between them.
X’s recent school report
The maternal grandparents relied particularly on X’s recent school report: exhibit 8. The report is undated, and seems to be a document that is added to as time goes by. The report indicated that it concerned X who is in year 4 in 2020. In the matrix area headed Communication, the report says, under the subheading, Strengths, that:
X can clearly articulate his ideas during class time to both his peers and the teacher. He is willing to participate in class discussions and reflections
X is willing to engage in informal conversation with a variety of people, both familiar and unfamiliar to him
Under the heading of Communication, there are also subheadings for Challenges and General Adjustment. They are both marked N/A.
Under the heading Social, the report states:
X is willing to engage with a variety of learners in the classroom. He has quickly made friends with other boys during the beginning of term 1 in year 4.
The report then refers to a meeting on 4 February 2020, at which Mr AA (X’s class teacher), Ms BB (unknown) and the maternal grandparents were present. The report states in this section that:
He is settled well into the year and has some good peer connections.
At school there is no evidence that he has much else going on.
He was looking forward to having Mr AA as a teacher.
Mr AA reviewed last year’s report. His work standard is where it needs to be.
He gets worried about other family members saying he has some learning problems. There is no evidence of any learning problems.
He is very settled
Under the heading, Planning for Upcoming Events/General Notes, the report says:
Travelling to court in Melbourne next week to receive final decision on custody. Mediation on Friday. X wishes to stay with his grandparents and has expressed this to his grandparents. He is happy with the current arrangement of short visits to his Dad once a year. Dad had only recently started to have visits with X. Only X’s grandparents - Mr Levens and Ms Levens - are the only guardians who are to pick him up. Mr Gaisford (X’s father) has tried to pick X up once before. This is not generally an issue, as X and his sister catch the bus home.
X will not go to court next week. He will be staying with a family friend in Town CC for a night. X has already expressed to the courts he wishes to stay with his Grandparents.
The reference to the hearing next week may have been a reference to the original listing in February 2020 for final hearing before Judge Bender. As mentioned above, the matter had to be adjourned until March 2020 before me.
The family consultant’s oral evidence
Ms R was cross-examined by the maternal grandparents about her understanding of how much time, or perhaps how little, X had spent with his father since his mother’s death. Ms R acknowledged that X had not spent a lot of time with his father since his mother’s death.
Ms R was also cross-examined by the maternal grandparents about whether X and his father had a bond, especially given that the father did not know of X’s existence for the first four years of his life. Ms R said that they now had a relationship, and X now had an opportunity to develop his relationship with his father.
Ms R also acknowledged that, since the mother’s death, the maternal grandparents had raised the three children, who all had a close bond with each other. She acknowledged that there was no problem with X’s school reports, except an issue about attention at one point.
When it was put to Ms R that X had gone through a lot of changes since his mother’s death, Ms R said that X had suffered an earlier trauma. That trauma was that his real father did not want him and that his father was Mr F. Ms R said it took X many years to understand his parentage. Ms R also said that a major tragedy for X was being told that his father did not want him when he was born and only became interested in him in the last few years. Ms R understood that both the mother and the maternal grandparents had told X that.
When asked again about the numerous changes X has endured, Ms R said:
… the most important developmental issue facing X at the moment is the formation of his identity, and … now that his mother has died, tragically, the opportunity comes for him to have again, a better understanding of who he is.
… And really, that he’s loved. He understands he’s loved by the maternal grandparents.
… He understands that he’s loved by his mother and his siblings, and the biggest challenge for X now is that he learns to change that script in his mind that his father didn’t want him, and didn’t love him.
… To understanding that his father does love him, that he is wanted.
… I think that’s the greatest challenge, facing X.
When asked about X moving into a new home, and leaving the support he currently receives from B, Ms R said:
… the sibling bond with B and with C is strong, but I don’t think it’s the defining issue for X’s development, into the future.
… I think for X, the defining issue is a need to redress the relationship, and recover and repair that relationship with his father.
… And develop a sense of identity that he is loved, that he’s loveable, that he’s wanted.
When reminded that the father had not sent X a good message, by not visiting on all the occasions when court orders permitted him to do so, Ms R said:
It hasn’t been a good message for X for many, many years.
… He’s vulnerable, in that respect.
… And that’s why there’s a need I think for the father and X to participate in counselling, to help X change that script in his head.
… And to help Mr Gaisford understand how to nurture and recover that relationship with his son.
When it was put to Ms R that X should transition to living with his father when the father had demonstrated a total commitment to the relationship, and X’s relationship with his father had developed further, Ms R said:
My assessment of X is that he’s sufficiently robust, sufficiently well-functioning and resilient enough to manage that transition, provided Mr Gaisford and he are supported in counselling to explore what has happened, and provided that, you know, there’s no risk or safety concerns in Mr Gaisford’s home.
… All of these children understand that they have a different father, so their experience of family life has been different.
… B understands that her father loves her. She has always known him. C understands that his father loves him, and he has always known him. For X, to understand that his father exists, that he lives a long way away, and he does love him and does want him is what will help X promote a healthy self-identity.
… I think X is capable of transitioning to his father’s care, and provided the counselling occurs, that relationship will strengthen.
When it was put to Ms R that that it was not appropriate to simply rip off the Band-Aid, and send X to live with his father with the benefit of a bit of counselling, Ms R said:
I think all of the children have suffered by the tragic death of their mother. I think B and C are very firm and clear in who their father is. X isn’t. And given the distance between the two homes and given that X is sufficiently resilient, in the absence of any identified risk with Mr Gaisford, I think that it’s not a Band-Aid, counselling. The counselling can be nurturing. The counselling can be helpful to explore X’s script of being unwanted and to help Mr Gaisford manage that in collaboration with X, and I think that, you know, it’s not a Band-Aid fix. It’s a future-focused process that can help X understand who he is and … he belongs to two families: his … mother’s family, who are loving, and his father’s family, who are loving.
When she was reminded that X had said that he voted to stay with his grandparents, Ms R said:
I think in the rough notes I have here he said, “I might as well just stay.”
… he voted [that way] because it’s what he knows.
… He didn’t vote because he had the capacity to understand what it would mean.
When Ms R was reminded that X did not know his father and his father’s partner very well, Ms R said:
… that’s why I’m suggesting that he should move sooner rather than later so that relationship can develop.
… If the mother were still alive, it’s not the recommendation I would be making.
When it was put to Ms R that her recommendation was contrary to X’s wishes, especially his wishes as expressed to his school teacher, Ms R said:
I was a bit surprised that the schoolteacher would be having those conversations with him, in all honesty.
I would suggest the schoolteacher … might do well in actually meeting X’s father as well and have a more balanced view of what’s going on.
When Ms R was reminded that her report did not assess the father’s partner, or the quality of X’s relationship with her, Ms R said:
There were a lot of people who attended that day, … B and X tended to remain with the grandparents, but it was overwhelming for all of them. … what I saw was that when X was in the presence of … the paternal grandparents, the father and Ms J, he was fine. My rough notes indicate that X told me that … he knows [Ms J]. … she bosses his dad around a little bit. … But X certainly gave the impression that he knows who Ms J is and his relationship with her is fine. … he said she was okay …
… there were no red flags of any concern for X in relation to Ms J or the father.
… having seen the parties together, having met Ms J at the interview, there were no red flags that were raised. X seemed familiar with her, comfortable around her.
The father’s advocate drew to Ms R’s attention, the father’s willingness to engage a psychologist to assist X with his grief and other issues. Ms R said:
I think it’s the most important thing for X’s identity. Is to strengthen his understanding that he’s loved and wanted by his father. It has been his script he was abandoned by his father. He was unwanted. … after such a tragedy, there comes an opportunity now to help X develop that identity and develop a loving relationship with his father, and I think it is important for dad to move quickly for X’s benefit.
The father’s advocate also asked Ms R if it was appropriate for X to change schools again. Ms R said:
Yes. Provided that his relationship with his father – that it’s tied up with him living with his father. Not just any school. But the whole mood is one parent is deceased and he does have a loving father who’s ready and able to have and live with him.
When asked by the father’s advocate whether it would be appropriate for the maternal grandparents to share parental responsibility for X with the father, once X moves to live with him, Ms R said:
No. Not given the distance between the two homes. In an emergency – if X’s living primarily with his father, his father needs to be able to make those decisions in the absence of being able to contact the grandparents, or in the absence of their agreement. So provided he keeps them informed of what school X is going to and what, you know, interests he has or any, you know, major issues, then that should be sufficient.
In answer to a question from the independent children’s lawyer’s counsel, Ms R reiterated that the maternal grandparents had contributed to X’s idea that his father had not wanted him in the first few years of his life. Ms R said her notes of her interview with X said:
I believe dad loves me and wants me now, but he didn’t when I was born. Stayed with grandpa.
Ms R specifically noted that X did not say that he stayed with his maternal grandmother. When asked whether the maternal grandparents were good people, Ms R said:
I think there’s no doubt that the maternal grandparents are good people. That is not one of the issues in this case. What is an issue is that this child – in fact, all these children – had been living with their maternal grandparents for some 18 months and had not received any professional assistance, outside of a school chaplain, to help them deal with [the] enormous grief that they experienced.
In relation to B’s needs, and the prospect of B and X being separated, Ms R said:
… my understanding is B said to him she was kind of anticipating it. You know, I think for me it remains that while the sibling bond is important, the most important thing for X is his identity and forming an identity of being loved, being wanted, being a lovable person. That’s the most significant issue – for me – for X. B knows who she is. C knows who he is and who their family are. For X, … that’s the struggle that he’s going to have to deal with. B is of an age and she’s … old enough to understand the trauma of the death of her mum, and the reason that the family is being separated. You know, that bond will become more distant, yes. But I don’t believe that it will impact B to a degree where … she will struggle to thrive.
When asked whether B, X and C had supported each other in dealing with the loss of their mother, Ms R said:
I don’t know. I don’t know. The … the children’s experience has been very different. The children’s experience of the loss of their mother has been different. C’s experience of the loss of his mother has been buffered by the presence of his father and the maternal grandparents, and the strengthening of that relationship. B has struggled – or she has managed the loss of her mother, the contemplation of perhaps living with her father and her decision not to. So she has had different supports. And X is the one whose sense of identity has been challenged. Their experience of the loss of their mother has been buffered differently by each of them. I’m not sure that, you know, given the age of the children and given C’s strong relationship and bond with his father that the children have leant on each other through this. They’ve been aware that they’re siblings, but I think they’ve dealt with the loss of their mother very differently.
When asked whether she really meant for X to relocate to live with his father in January 2020, when the trial was not scheduled until February 2020, Ms R said that she meant X should relocate to live with his father in January 2020. Ms R explained:
… for me, the most appropriate situation or progress for X was for him to manage the grief of his mother by living with a parent who wanted him and to having that relationship strengthened and nurtured. And I think that, rather than start one school and then move – restart at school – so mid-January was before the school year started.
When asked whether X should relocate, as the independent children’s lawyer proposed, in January 2021, Ms R said:
[if] this is delayed and if the move is inevitable, it postpones the opportunities for X and his father to nurture that relationship. I think the children in this matter are all aware of the devastating fallout from … the unfortunate death of their mother. And things are changing. If it’s inevitable that X ends up living with his father, which is my recommendation, I’m not sure there’s a clear advantage one way or the other or a clear disadvantage for him to move midyear or 5 January 2021.
When asked about whether it would be to X’s benefit to not disrupt his academic year, Ms R said:
Not necessarily at his age. … he’s an okay student. I think that X is the sort of kid that would manage and thrive.
When asked whether it would not be better to delay the relocation until X had spent more time with his father and Ms J, Ms R said:
The difficulty that we keep coming back to is the distance between the two homes. And I think the [maternal] grandparents and the father have all agreed that … every second weekend is not practical. It can’t be done. And my assessment of X’s character and X’s … developing relationship with his father was that, given an awareness of the reasons for the move, … X would be able to be nurtured and supported in making that transition.
It was put to Ms R that, if the father would spend each alternate weekend with X before he relocated, that would strengthen their bond. Given the choice between X relocating mid-2020, as the father proposed at that point in the trial, or in January 2021, as the independent children’s lawyer proposed, Ms R recommended X relocate in mid-2020.
When asked again about parental responsibility, Ms R reiterated her recommendation that the father have sole parental responsibility, and said:
I think the maternal grandparents’ role will change. They will become grandparents rather than carers, primary carers, of X. And therefore their role will change and Mr Gaisford will need to step up and accept responsibility for raising his son, for making good decisions on his behalf. It’s a matter for the court to decide whether it’s shared or solo. I’m not going to come down, you know, more heavily than what I already have. If X lives with Mr Gaisford, then – and that’s where he’s going to be raised – then the father needs to make decisions on his behalf. At present the distance is an issue. However, my understanding is that X living under the primary care of the grandparents is an interim measure.
When asked again about the sibling bond, Ms R said:
It’s hard to know. For me, as I said before, the main issue is for X … to have opportunities to develop a sense of who he is in relation to his only living parent and for that to occur, that relationship needs to be nurtured. And I think that while the sibling bond is important, it’s not as important as supporting X’s developing identity as a person, … [as] a child who is loved by his father.
When asked again about B, Ms R said:
… when I met B, she was anticipating X leaving and she assured me that she would manage. … B is of an age where she can retain a memory. She’s quite confident and supported in her choices and at her age … her interests will become more related to her and her own developmental needs.
… her relationship with C and with X should continue to be familiar. I don’t think B will suffer developmentally.
… B’s interests will shift away from her brothers, you know, as a natural consequence of her age and maturity.
… Nothing that B shared with me would suggest she would be distraught. She would miss her brother.
When asked by the court about the impact of the coronavirus pandemic, and the possibility that schools would close, Ms R said:
I think that I would be looking at transitioning him midyear. However, if schools close prior to midyear, that maybe transition him at the end of term 1 and the beginning of term 2. And then he could settle with his father prior to school reopening and resuming school.
When asked by the court about the consequences for X of not being able to form an identity, as he could if he relocated to live with his father, Ms R said:
For X, the difficulty will be if he believes that he was unwanted, that his father didn’t want him at birth, that he may internalise that and believe there’s some core essence of him that is unlovable. At the death of his mother, if he believes in some way that his father still didn’t want him, or didn’t fight hard enough for him or things like that, whereas his siblings all have fathers who love them and who wanted them, for X it’s – the risk is that it will kind of eat at the core of who he is, that, you know, “My father never wanted me. He abandoned me. He abandoned me at birth, he abandoned me after my mother died.” And for X, it’s about internalising and about believing that there’s some huge part of him that’s undesirable, unlovable, unwanted. In the longer term, that will heighten the risk of depression, self-harm, acting out behaviours. You know, they’re the risks of someone who believes they’re unlovable.
When asked again about X’s feeling that he was not wanted, Ms R said:
… His mother told him that she didn’t want him connecting with the paternal grandparents because something bad might happen. All of that. There’s a script there, for X, that there’s something wrong about his father, and that needs to change.
Best interests of the child
Part VII of the Family Law Act 1975 (“the Act”) deals with the court’s power to make orders in respect of children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
(4)An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
Section 60CA of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC(1) of the Act relevantly provides that:
Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations.
Subsection 60CC(2A) provides that:
In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
I will address the relevant considerations in order.
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
Tragically, in this case, X now has only one parent, his father. X’s maternal grandparents have done their best to care for X, since his mother died. However, the maternal grandparents are not X’s parents. Paragraph 60CC(2)(a) of the Act says nothing about the benefit to the child of having a meaningful relationship with his grandparents.
Ms R’s evidence was very clear. There is an extraordinary benefit to X in having a meaningful relationship with his father. That is because X has suffered the unfathomable loss of his mother at a very young age, and because he was led to believe that his father did not want him. This has caused X to be extremely vulnerable, from the point of view of his psychological development and identity formation. Given X’s predicament, the benefit to X of having a meaningful relationship with his father is overwhelming.
It should be noted at this point that Ms R, unlike many family consultants, is a qualified psychologist. She has a Master’s degree in psychology and many years’ experience as a family consultant. As such, she is well qualified to give opinion evidence about the impact on X’s psychological development and identity formation of not having a meaningful relationship with his father.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
It was not suggested that X faces any risks of abuse or family violence in either his father’s household or in the maternal grandparents’ household. However, X is at risk of some unintended social neglect in his maternal grandparents’ household, due to their own very small social circle, and the maternal grandmother’s poor health.
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
X told Ms R and his teacher that he would prefer to live with his maternal grandparents. However, X also told Ms R that he might be able to live with his father when he was 10 years old. He will turn 10 on 26 July 2020, about four months after the trial, and about seven months after the family report interviews.
Ms R was clearly of the professional opinion that X’s preference to continue living with his maternal grandparents for the time being was reflective of his age, and his familiarity with his maternal grandparents and their household, rather than being reflective of his long-term best interests. Consequently, little weight should be given to his preference to remain living with his maternal grandparents.
It is significant, however, that X was willing to contemplate living with his father within about seven months’ time.
Section 60CC(3)(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
X appears to have had a good relationship with his mother, who is now deceased. He had no relationship at all with his father for the first four years of his life, and was told that his father did not want him. His father did not know of X’s existence for the same period of time. X began to have a relationship with his father after he turned four years old. However, for reasons of distance and cost, X has spent little time with his father in the ensuing five years.
X has a close and loving relationship with his maternal grandparents, particularly his maternal grandfather. X is developing a relationship with his paternal grandparents, but, like the father, they had no idea of X’s existence until he was four years old. They also live a long way from X, in Melbourne, and have spent relatively little time with him.
X has a good relationship with his older half-sister, B, and with his younger half-brother, C. However, C reported that they hurt each other sometimes. These events are probably just in the nature of normal childhood skirmishes. X said that he did not feel particularly close to C, because they are interested in different things.
Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child
The mother deliberately excluded the father from X’s life for his first four years. Since then, the father has gone to some trouble to be part of X’s life. However, the distance between the two households has made this difficult. The father now seeks sole parental responsibility and for X to live with him.
Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
The mother maintained X unassisted by the father for the first four years of his life. Since then, the father has made some financial contribution for X’s support, but not a lot. Once X commences living with his father, it is to be expected that the father will take on virtually the whole of X’s financial support.
Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
X has been separated from his mother because of her untimely death. As Ms R explained, this could be expected to have a profound effect on X, particularly because he had a limited relationship with his father, who he had been told did not want him. Ms R recommended grief counselling, to ameliorate those effects.
Particularly in view of X no longer having a mother, in Ms R’s view, any separation of X from his father could have devastating effects on X’s psychological development and identity formation.
In Ms R’s professional opinion, the effects on X of a separation from his maternal grandparents and his half-siblings would not have a comparable effect on X. While X could be expected to miss them, being separated from them would not have the profound psychological consequences that being separated from his father could have.
Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
There are considerable practical difficulties and expenses with X maintaining a relationship with his father if X continues to live with his maternal grandparents, as there is a considerable distance between the two households.
There are no equivalent difficulties if X lives with his father. That is because the maternal grandparents are not X’s parents. Paragraph 60CC(3)(c) of the Act does not call for consideration of the practical difficulty of X spending time with his maternal grandparents.
Section 60CC(3)(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
The mother is no longer able to care for X. The father appears to be well able to care for all of X’s needs, although obviously their bond needs to be strengthened. In particular, the father seems to be well able to care for X’s social and sporting needs. The maternal grandfather conceded that the maternal grandparents had been unable to facilitate X attending a sporting activity, because court orders prohibited any of the children being left in the sole care of the maternal grandmother.
The maternal grandparents have the capacity to provide for X’s basic needs. However, they have a limited capacity to provide sufficiently for X’s need to socialise outside school and participate in team sport.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
There are no particular issues in relation to this factor.
Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This factor does not apply in this case.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
While she was alive, the mother demonstrated a very good attitude to the responsibilities of parenthood, except that she told X that his father did not want him and did not tell his father that X existed until he was four years old.
Since learning of X’s existence, the father has demonstrated a willingness to be involved in X’s life by visiting him and having him to stay at his place, notwithstanding the distances involved and the expense, and, more recently, seeking orders for sole parental responsibility and for X to live with him.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family
There were no allegations of family violence in this case.
Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter
This factor does not apply in this case.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
It would be preferable to make the order that would be the least likely to lead to the institution of further proceedings in relation to X. Making an order for the father to have sole parental responsibility and for X to live with him forthwith seems to me to be the order least likely to lead to the institution of further proceedings.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant
The relevant facts and circumstances are discussed elsewhere in these reasons.
Equal shared parental responsibility
Section 61DA of the Act provides as follows:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Obviously, in this case, X’s parents cannot have equal shared parental responsibility for him because, tragically, his mother has died.
Nevertheless, the maternal grandparents argued that they and the father should have equal shared parental responsibility for X even after X relocates to live with his father. In support of that proposition, the maternal grandparents relied on Aldridge v Keaton (2009) 235 FLR 450; (2009) 42 Fam LR 369; (2009) FLC 93-421; [2009] FamCAFC 229), where the Full Court of the Family Court held that the court can make any order that is in the best interests of the child, including an order for parental responsibility to be exercised by a person who is not the parent of the relevant child, where that person has established under s.65C(c) of the Act that they are a person concerned in the care, welfare or development of a child. Moreover, in Aldridge v Keaton, the Full Court held that there is no hierarchy of applicants. That is, in an appropriate case, a parent can be displaced by a grandparent, or, for that matter, a neighbour, if that is in the child’s best interests.
There is no doubt that the maternal grandparents are people concerned with X’s care, welfare and development. The only question is what is in X’s best interests. Ms R, the independent children’s lawyer and the father all agreed that it would be in X’s best interests that his father exercise sole parental responsibility for him once X relocates to live with his father. The maternal grandparents submitted otherwise.
I accept Ms R’s professional opinion on this issue. The considerable distance between the two households presents a barrier to easy and ongoing communication, even with technology. The relationship between the father and the maternal grandparents is somewhat strained. For example, the maternal grandfather said that he does not speak to the father at changeover, but remains inside the house and leaves X to go outside alone to meet his father. The maternal grandmother is, from time to time, hospitalised, and mentally incapable of taking responsibility for herself, much less a child.
In all the circumstances of this case, it seems to me to be in X’s best interests that his father have sole parental responsibility for him after he relocates.
Equal or substantial and significant time with each parent
Where the parents have equal shared parental responsibility for a child, subsections (1) to (5) inclusive of s.65DAA of the Act require the court to consider the child spending equal time, or a substantial and significant time, with each parent. Subsections (1) to (5) inclusive of s.65DAA provide as follows:
Equal time
(1)… if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2)… if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Note:Paragraph (c) reference to future capacity – the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
In the present case, equal or substantial time with each parent is not an option, because the mother is deceased. Similarly, equal or substantial time with the father or the maternal grandparents, depending on with whom X is to live, is not viable, because of the distance between the two households.
When X should relocate to live with his father
The parties agreed that it is in X’s best interests to live with his father. The only question in relation to X’s living arrangements was when the relocation should occur.
The trial in this matter occurred on a Monday to Thursday when the impacts of the COVID-19 pandemic in Australia were ramping up with frightening speed. By the following Monday, 23 March 2020, the Victorian government had announced that the commencement of the April school holidays would be brought forward to Tuesday 24 March 2020. A number of states had closed or announced the imminent closure of their borders.
In these circumstances, it appeared to me to be imperative that, if the father could collect X, it would be very much in X’s best interests to relocate to his father’s home immediately. This was in accordance with the recommendations of Ms R, in the event that schools were closed. Her original recommendation had been for X to relocate over the summer holidays in January 2020. As January 2020 had passed, and when the options put forward by the parties were, at the earliest, the end of term 2 in 2020, Ms R opted for the relocation to occur at the end of term 2 in 2020. However, with the prospect of schools closing, Ms R said that any benefit for X in remaining at his current school evaporated, and the preference would be for an immediate relocation.
Consequently, I arranged for an urgent telephone mention on 23 March 2020. The father said that he could drive nine hours that day to collect X, and return him to New South Wales on 24 March 2020, before any more borders closed. I then made the orders that precede these reasons.
In my view, it was obviously in X’s best interests to live with his father from 24 March 2020 onwards. The benefits of X finishing term 1 and term 2 at his school in Town L were negligible, in circumstances where the schools in Victoria were going to be shut down. It now seems that schools in Victoria will open in term 2 for the children of essential workers. There is no reason to suppose that X would have fallen into that category.
I commend the maternal grandparents for caring for X and his half-siblings for the last two and a half years. However, for the reasons expressed by Ms R, and particularly in view of the COVID-19 pandemic, it is now in X’s best interests to relocate to live with his father.
Although all of the orders made on 23 March 2020 were expressed as orders of the court, the reality is that all parties consented during the trial to all but the first one or two of them. Consequently, it is unnecessary to set out the reasons for the additional orders.
I certify that the preceding one hundred and thirty-two (132) paragraphs are a true copy of the reasons for judgment of Judge Riley
Date: 9 April 2020
Key Legal Topics
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Family Law
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Jurisdiction
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Procedural Fairness
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